Curtis and Percy & Anor

Case [2018] FamCA 221


FAMILY COURT OF AUSTRALIA

CURTIS & PERCY AND ANOR [2018] FamCA 221

FAMILY LAW – CHILDREN – Interim – Where the Department of Families and Communities (NSW) have intervened in the proceedings – Where the children are currently in foster care – Where the father seeks an order that the children be returned to his care – Where the Court cannot be satisfied that returning the children to the care of the father on an interim basis would not expose them to the unacceptable risk of physical harm and exposure to violence – Order that the Minister for Families and Community Services have parental responsibility for the children – Order that the children spend time with each parent as arranged and supervised by the Minister for Families and Community Services

FAMILY LAW – CHILDREN – Where the father seeks an order that the independent children’s lawyer be discharged – Where the father seeks an order for the removal of  the single expert psychiatrist –  Applications dismissed

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bondai & Bretton (No 2) [2010] FamCA 1237
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Donnell & Dovey (2010) FLC 93-428
Goode & Goode (2006) FLC 93-286
Johnson & Johnson (2007) FamCA 229
M and M (1988) 166 CLR 69
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Marvel & Marvel (No.2) (2010) 43 Fam LR 348
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Newport & Newport [2016] FamCA 1066
Potts & Bims [2007] FamCA 394
SCVG & KLD (2014) FLC 93–582
Valentine & Lacerra and Anor (2013) FLC 93-359
APPLICANT: Mr Curtis
RESPONDENT: Ms Percy
INTERVENOR: The Secretary, Department of Family and Community Services (NSW)
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
Lismore Family Law
FILE NUMBER: LEC 199 of 2008
DATE DELIVERED: 16 March 2018
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Carew J
HEARING DATE: 13 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Donaghy
SOLICITOR FOR THE RESPONDENT: Ms Ekanayake
COUNSEL FOR THE INTERVENOR: Ms Neville
SOLICITOR FOR THE INTERVENOR: Crown Solicitor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkin

Order

  1. Paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 9 March 2018 be dismissed.

  2. All previous parenting orders be discharged.

  3. Paragraph 15 of the Order made by this Honourable Court on 17 January 2018 be discharged.

  4. The father attend upon Dr B to be psychiatrically assessed at 10.00 am on 11 April 2018 or at any other reasonable time as he may be advised by the independent children’s lawyer.

  5. Until further order the Minister for Families and Community Services (NSW) have parental responsibility for the children C born … 2013 and D born … 2015 and live as directed by the Secretary,…

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Curtis and Percy & Anor [2018] FamCA 221
Case
[2018] FamCA 221
Decision Date

CaseChat Overview and Summary

In *Curtis and Percy & Anor*, the father sought interim orders for the return of the children to his care. The Department of Families and Communities (NSW) had intervened in the proceedings, and the children were residing in foster care. The father also sought the discharge of the independent children's lawyer and the removal of the single expert psychiatrist appointed to the proceedings.

The primary legal issue before the Court was whether it could be satisfied that returning the children to the father's care on an interim basis would not expose them to an unacceptable risk of physical harm and exposure to violence. Subsidiary issues concerned the father's applications regarding the independent children's lawyer and the expert psychiatrist.

His Honour Carew J found that the Court could not be satisfied that the children would not be exposed to unacceptable risk if returned to the father's interim care. Consequently, the Court made orders that the Minister for Families and Community Services have parental responsibility for the children. The Court further ordered that the children spend time with each parent as arranged and supervised by the Minister for Families and Community Services. The father's applications for the discharge of the independent children's lawyer and the removal of the single expert psychiatrist were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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